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Building a Responsible Cyber Society…Since 1998

As we enter the final stages of public consultation on the drafting of the new Data Protection Act of India following the release of the White Paper by the Justice Srikrishna Committee, one aspect of the law that needs attention is the “Right to Know” of an individual which often conflicts with the” Right to Privacy” of another individual.

Right To Know is a different concept

“Right to Know”  is a concept that GDPR also has ignored and there is an opportunity for India to introduce this concept into the discussions of Privacy.

Let me explain with an example why this concept is different from other known concepts including “Right to Information”.

When some body calls us on a phone, the first question we would like to know is “Who is calling?”. If the other person says, sorry, I value my privacy and would not like to reveal my identity or I would like to talk  under a pseudonomous name, the question arises as to whether this is a valid Privacy argument or not.

Similarly, when I receive an e-mail from some body who says he is Jignesh420@gmail.com, I have the right to know whether he is really somebody I know or not. I donot trust the display name since I know that Google does not do a KYC before allocating the user name. I therefore donot know if the e-mail is a “Spam”, is an attempt to “Impersonate” or is an attempt to commit a fraud on me. If I want to know more about the person, I need to know his IP address.

However, Google in its misdirected concept of Privacy hides the IP address with a proxy address from Google which cannot be deciphered without the intervention of law and takes too much of time and effort and often bribing of the law enforcement personnel just to send a notice to Gmail administration.

I therefore ask a question to the law makers,

Do I not have a right to know the true IP address of the person who has sent me an e-mail?

If Privacy activists want the IP address to be hidden in the email while it is in transit, I demand that Google should introduce a procedure by which every recipient of an e-mail should be able to raise a one click query to know the IP address from which an E-Mail has been sent to him and Google should automatically provide the information.

Similarly, any ISP should also provide the last mile resolution of the IP address to any person who can prove that he has been in receipt of a communication from such IP address.

This is what I consider as the “Right to Know” and it extends to the Facebook and Twitter accounts as well as social media such as the Whats App.

If “Right to Know” is upheld as a Right of an individual, it does not conflict with the right to privacy of an individual except that such right stops at the door steps of the rights of the receiver of a communication. On the other hand it provides a new right to the recipient of an electronic communication just like the “Right to Speech” co-exists with the Right of Privacy in law.

This “Right to Know the IP address” extends to other instances such as

a) Right to Know the identity of a Domain Name Registrant

b) Right to know the identity of the owner of a Telephone number or Mobile Number from which the recipient has received at least one call or is reasonably suspected to have been used for the commission of an offence.

…. and may be for other instances as well to be  defined just like the multiple parameters we may use for classifying “Sensitive Personal Information” under the law.

Aadhaar has recently introduced a link on its site to provide information on Aadhaar usage history of a person which is a great measure towards transparency. But the information provided is on the basis of a transaction code that cannot make any sense to the Aadhaar user. It has to provide the name of the entity that made the query either directly on the website itself or through a link for which there can be a second OTP authentication. This falls under the “Right to Know”.

The procedure for extracting the information in the above cases must be simple and nothing more than

a) Identification of the person who is making the request with something like the digital signature or Aadhaar

b) Statement of the suspected contravention of law or proof of being a recipient of an attempted communication

c) A commitment not to misuse the information for any purpose other than the stated purpose with an undertaking to be liable for consequences of misuse

I request Justice Srikrishna Committee to consider this suggestion and incorporate it into its recommendations.

(Comments Invited)

Naavi

(This is a continuation of the previous article)

2. One of the questions that arose during the discussions was on the “Data Breach Notification requirements” under the proposed act.

There was one concern of the industry that “Data Breach” reporting to the data subjects should not be mandated and even if required it should not be as immediate as notification to some industry authority etc.

This is a standard response from industry whenever data breach notification is suggested in any data protection act. Industry wants to protect its reputation by sweeping the data breach notification under the carpet. While most industry players would jump at Aadhaar leakage when reported, they would not like a breach in a Bank coming out in the open. Hence the demand that they should be exempted from notification of data breach to their customers.

Some industry players also brought out the issue of a need for time to determine whether a “Suspected data breach” is actually a “Data breach”, whether a “Data breach” is not exactly a data breach but only a “Denial of Service attack” etc and argued that industry should not be forced to report a data breach before it is confirmed.

However the industry agrees that most data breaches need to be confirmed with an audit  and many times the recognition of data breach itself takes months and after the recognition, the completion of the internal audit takes several more months. If therefore the industry demand in this respect is to be accepted, then data breach will never become public for more than an year.

Industry is however not averse to sharing some potential breach information with an industry organisation because they know that the industry organziation can be manipulated and hide the information of the data breach. For example, many wannacry attacks on ATMs of Banks were never reported by Banks and public never came to know of them. Even a major cyber attack on a Bank after the Swift system hacking in Bangladesh, was pushed under the carpet. Given an option even the UIDAI would like not to publicise the data breach reports on UIDAI because it hurts the reputation of the system.

The strong opposition to data breach notification to the data subjects itself indicates that it is a very effective deterrent that industry would not ignore. Hence it is absolutely essential that this data breach notification must be incorporated in the law as a mandate. The time limit in other international regulations is around 30 to 60 days and it would be necessary to make a provision for “Public Notification”  before 30 days.

In case there is difficulty in confirming the data breach because of the need for an audit etc.,  the notice can say that the investigation is under progress and the notice is a “Provisional Notice”.

Some persons also raised the issue of “Cost of Data breach notification” to the data subjects. The notification can be made

a) Through advertisement

b) Through notice in the website of the Data Controller

c) Through a notification in the Data Protection Authority website

c) Through e-mail

In order to further reduce the cost of “Advertisement”, a suggestion was made that  to the effect that Data Protection Authority can create a broadcast platform.  A mention can however be made that such services are already available at www.cyber-notice.com along with Section 65B certification. Industry is yet to recognize the potential of the service and perhaps a need for mandatory data breach notification would make the industry realize the need for such services. 

(Will be continued)

Naavi

Links to all the three parts of this report of the consultation are available here

Part I

 Part II

Part III

During the discussion on the Data Protection white paper in Bangalore on 13th instant by three members of the Expert Committee led by the Chairman Justice B.N.Srikrishna, several interesting issues came up for discussion. While it is difficult to recall all the points discussed, I am trying to capture some of the interesting points raised along with my comments here.

The comments made here are not that of the expert committee members and should not be construed as views either accepted or rejected by the committee at this point of time. Justice Srikrishna was however a great listener and tried to probe the persons raising questions to understand the issue as much as possible. The ministry representatives have made suitable notes and they are likely to be discussed by the committee later and taken into account before a bill is recommended.

  1. One of the suggestions made was that the law should be people oriented and principle based.

Comment: In India, we still does not have a law on Privacy protection. Except for the fact that we know Supreme Court considers Privacy as a fundamental right of a person under Article 21 of our constitution under “Right to life and personal liberty”, we donot have a definition of what is “Privacy”.

The first question that the Indian Data Protection Act (IDPA) has to address therefore is whether we have one section in which we define what is Privacy. i.e. Do we incorporate a clause in the definitions, stating “Privacy means…..”.

The problem however is that the nine member bench of the Supreme Court itself did not take up the responsibility of defining what is “Privacy” and some of the judges in their respective individual orders (not forming part of the final signed collective operative order under the judgement of 24th August 2017 which we refer to today as the Puttawamy Privacy judgement) made different comments stating different aspects of our life as elements of “Privacy”.

This law therefore cannot take upon itself the responsibility of defining what is “Privacy”.

Currently, Information Technology Act 2000 (ITA 2000) has a definition of “Personal Information” and “Sensitive Personal Information” and has prescriptions of how it has to be protected by Body corporates,(under Section 43A) , how it has to be collected and protected by intermediaries (Section 79 of ITA 2000), what compensation may be available for wrongful loss arising therefrom (Section 43,66, 72A), how long the data has to be preserved (Section 67C), how the data can be intercepted and collected by Government agencies for national security reasons (Sections 69,79A, ,70B) etc,. All these are essential ingredients of a Data Protection Act in respect of “Data in electronic form”.

Will IDPA also address these issues?.. If so, will it be overlapping with ITA 2000/8 provisions? is one of the decisions that the committee needs to arrive at.

The IDPA as is being envisaged is addressing to what is referred to in the Puttaswamy judgement as “Information Privacy”. This definition is dependent on the definition of “Privacy” and a judgmental decision on “Which information addresses to Privacy”. For example, will an IMEI number be considered as “Personal Information”? if so, is it simply “Personal information” (PI) or is it “Sensitive personal Information” (SPI)? . Is an IP address a PI?, Is E Mail address a PI?. except for “Biometric” or “Password” there may not be a consensus of what is to be included or excluded from the definition of PI and where the line of demarcation has to be drawn between PI and SPI and whether the classification has to be even further refined as PI-Level I, PI-Level 11, SPI-Level I, SPI Level II etc needs to be decided.

In such an uncertain environment, the law cannot be “Prescriptive” at all. It has to be necessarily “Principle based”.

Now, if ITA 2000/8 already has a “Principle based”- “Due diligence” and “Reasonable Security Practice” already defined, what does the new IDPA do in repeating the same things in a different statute?

In this context, a question arises whether it is a good idea to simply make amendments to ITA 2008 to meet the objectives of the proposed IDPA.

If required, a new chapter can be added to ITA 2008 called “Chapter on Data Protection” and incorporate the requirements of registration of data controller etc., which are not adequately covered in ITA 2000/8.

 (Will be continued)

Naavi

Links to all the three parts of this report of the consultation are available here

Part I

 Part II

Part III

Public Consultation on Data Protection Legislation

Posted by Vijayashankar Na on January 14, 2018
Posted in Cyber Law  | Tagged With: , , , | No Comments yet, please leave one

Yesterday, (13th January 2017), three members of the Judtice Srikrishna Committee on Data Protection Law participated in a public consultation program in Bangalore at the IISc auditorium.

Honourable Justice (Retd) B.N. Srikrishna, the Chairman of the committee was present along with two other members of the committee namely Mr Gopalakrishna and Rama Vedashree. A healthy discussion was held all through the day with around 100 participants which consisted of the elite Privacy practitioners in Bengaluru including IT professionals, Lawyers, Activists and some representatives from the academia. This was one of the four such meetings that are being held across the country while the option to submit the feedback continues on the website till January 31, 2018. The earlier meetings were held in Delhi and Hyderabad and the last meeting is being held at Mumbai.

Though this consultation was not directly related to a discussion on Aadhaar, there were many agitated Aadhaar critics in the meeting and raised their concerns. The Supreme Court which is resuming its hearing on Aadhaar on 17th January 2018 will take into account the efforts of the Government in improving the Privacy protection regime in the country both in its efforts to introduce the Virtual Aadhaar ID system as well as the introduction of a robust data protection law in India.  In that context, the efforts being taken by the committee to have a wide consultation across the country with experts from the field was important since one of the objections of the Anti-Aadhaar lobby has been that the Justice Srikrishna Committee itself did not have a proper representation of all stake holders. This consultation process therefore addresses this issue and takes the sting out of the criticism that the committee does not represent all the stakeholders.

Justice Srikrishna came through as a well informed person even in the field of Technology and gave confidence to the community that the Data Protection recommendations to be given by the committee would be fair and address most of the concerns. He was keen to listen to the views of everyone and responded where required with his own wit and humour, keeping the discussions lively throughout the day.

End of the day, the gathering was convinced that the job of framing the data protection law which has been pending since many years and passed through many versions would get another serious and fair try.

We urge professionals to take the time left to go through the white paper and submit their valuable views to the committee so that the opportunity to contribute to the law making in this important area is not missed.

Naavi.org hs been providing its views and will continue to do so in the next few days left.  So far some of the views have been expressed in the following articles.

1. Data Protection Law in India… Three Big Ideas …. Data Trust, Jurisdictional Umbrella and Reciprocal Enforcement Rights
2. Look beyond GDPR and Create Personal Data Trusts to manage Privacy of data subjects
3. “Compliance by Design” should be the motto of the Data Protection Act of India
4. We should forget the “Right to Forget” in Indian Data Protection Act
5. Personal Data should be considered a personal Property
6. Data Protection Act.. We should aim at Compliance with Pleasure not Compliance with Pain.
7. Right to Privacy should cease at death
8. Proposed Data Protection Legislation in India- White Paper released
9. All articles

Naavi

[P.S: This is in continuation of the discussion of the proposed Data Protection Act in India and the public comments invited for the  Justice Srikrishna report.]

Many of the issues connected with Privacy arise out of the complaint that “information collected by a Data Controller” is processed in such a manner that the data subject feels that his privacy has been breached. Hence “Consent” is sought and obtained before collection of information. Section 79 of ITA 2000/8 under its rules has already adopted the procedure of disclosure and consent when an “Intermediary” collects personal data from a data subject in India. The fact that “Consent” should be an “Informed consent” is also well appreciated.

However most data subjects never care to read the Privacy statements or Privacy policies when presented to them before a specific use of a service. Many service providers also take blanket permissions ignoring the principles of minimal collection and purposeful use.

In the absence of proper legal requirements, data subjects can only try to take legal action against an entity that breaches the law if they can claim damages. But in most cases, damages cannot immediately be recognized and evaluated and hence “breach” can be recognized but not its consequences. Hence there can be no legal remedy in most cases.

When a data protection law is in place, the regulator can take action for breaches even when no damage is claimed by any data subject. Though this provision is available even now under Section 46 of ITA 2000/8, it is hardly recognized as existing. When the new law comes in, since there will be a recognized regulator called the “Data Protection Officer of India”, it will be his duty to monitor the industry and initiate action when required.

Some data controllers may blame the data processors for the breach and data processors may allege that the data controller did not indicate the responsibilities properly in the SLA. Even now many of the data processors in India coming under GDPR allege that they donot have a proper Business Associate Contract from their vendors specifying the information security requirements. Hence the responsibilities cast on the data processors is vague and goes without compliance.

The new law should ensure that this “Vagueness” is removed, by making it mandatory that the Data Controller who is the person/entity to whom the data subject provides the personal data and  “Consent” to use that data in a particular manner, take full responsibility for any breach and also mandate that any sub processors are bound with specific instructions which are clear. If the sub processor is also within the Indian jurisdiction, it may suffice to make a reference to the legal provision in toto by referring to the Act. But when the Data Controller and Data Processor are in different jurisdictional areas, it is necessary for the Data Controller to specify in a contract the actual responsibilities related to the processing of any data set/s and not leave it vague.

Assuming that this provision is taken care of, we can expect that all controllers will present comprehensive “Consent Requisitions” whenever online consent is required. They may even justify in the requisition the purpose of collection and how the information will be secured etc. However, in the process the consent requisition will be a long online document which no user is likely to read at length and just proceed to click “I Accept” and start availing the service. In some cases the service provider may say that “Continued use of the service is deemed to be a consent of the privacy policy” and provide a hyper link which the user does not care to open and see.

Such online consents may not be treated as proper  “Informed Consent” because it is not digitally signed and also because the likelihood of it having been read and understood before it is consented to is low. Since India does not recognize the Click Wrap contract  the acceptance of consent by the click of the button has no legal sanctity. The consent therefore only becomes an “Implied Consent of a dotted line contract”, where the fine point details could be considered voidable at the option of the customer.

Even when such consents are treated as contractually acceptable, the data subject may not be able to decypher the intricacies of the contract and take an informed decision. When multiple parties require multiple types of consents and multiple times, there would be inevitably the “consent fatigue” that makes him simply click without a second thought.

Hence the current system of each data controller taking individual consent each time a data is required for a specific purpose is not practically efficient.

One of the ways by which we can overcome this is to treat personal data as a property of value to the data subject and every usage as “Licensed Use” with some kind of rewards to be available to the data subject which is proportionate to the benefits that the data user may enjoy. In this concept the data subject actually sells the right to use his personal data for a consideration. However to manage this system, the data subject needs professional assistance and hence there is a role for an intermediary “Who Collects consents and data, keeps it with himself and releases it on specific request to a user as a personal Data manager of the data subject”.

The “Data Manager” being a professional agency knows the value of the personal data to different service providers and maximize the returns to the data subject. It is not necessary that the reward to the data subject is in the form of direct money. It could be in the form of reward points that are exchanged for some valuable service.

Further, the “Data Manager” as an intermediary can act like the “Personal Data Locker” and offer services such as anonymization and pseudonomization as well as providing limited set data devoid of key identifiers. He can ensure that value addition in the form of data mining and Big data analytics can be conducted without compromising the privacy of the data subject.

In order to provide an opportunity for such intermediary business, Personal property should be recognized as the property of the individual and he should have the right to license it for a price. The proposed data protection act should also recognize and define the role of the “Data Manager” as a business in which the data subject transfers the right to manage his personal data exclusively to one such agency. This role is different from that of the “Data Controller” and “Data Processor” as is used in laws such as GDPR. He should deal with the Data Controllers and ensures that they adhere to the principles such as minimal collection, purposeful use, adequate security, removal on completion etc. When he approves disclosure of personal data of his clients, he can ensure that adequate value is returned to the data subject however small it is.

The Data manager will subsume the role of the Data Controller to the extent that the data subject provides his consent only to the Data manager and all that the data controller gets is a “proxy identity”. The linking between the proxy identity and the real identity is in the hands of the Data Manager and the principles enunciated in our earlier discussions on “Regulated Anonymity” can be used so that only responsible data controllers will get the real identity based premium personal data. Others can get a lower valued proxy identity data. Some others may use limited data set and others the de-identified data. Thus the Data Manager can effectively classify and package data offerings and create value where as today the data subject does not get any value for his personal data which he shares with various service providers.

This type of parallel thinking can be incorporated in the Indian Data Protection Act so that it does not become simply a rehash of the GDPR or other international data protection legislation.

Naavi

[P.S: This is in continuation of the discussion of the proposed Data Protection Act in India and the public comments invited for the  Justice Srikrishna report.]

The Justice Srikrishna Committee (SKC) has propounded 7 key principles of the Data Protection Act and proceeded to provide several questions in its report seeking public comments.

The Seven key principles under which the proposed Data Protection law would be based are as follows.

1.Technology agnosticism– The law must be technology agnostic. It must be flexible to take into account changing technologies and standards of compliance.

2.Holistic application– The law must apply to both private sector entities and government. Differential obligations may be carved out in the law for certain legitimate state aims.

3.Informed consent– Consent is an expression of human autonomy. For such expression to be genuine, it must be informed and meaningful. The law must ensure that consent meets the aforementioned criteria.

4.Data minimisation– Data that is processed ought to be minimal and necessary for the purposes for which such data is sought and other compatible purposes beneficial for the data subject.

5.Controller  accountability–  The  data  controller  shall  be  held  accountable  for  any processing of data, whether by itself or entities with whom it may have shared the data for processing.

6.Structured enforcement– Enforcement of the data protection framework must be by a high-powered statutory authority with sufficient capacity. This must coexist with appropriately decentralised enforcement mechanisms.

7.Deterrent  penalties–  Penalties  on  wrongful  processing  must  be  adequate  to  ensure deterrence.

The above principles may determine the broad contours under which the SKC may work out a draft of the Data Protection Act of India (DPAI). In the background  the Supreme Court’s views on Aadhaar as an instrument of Governance and a potential tool of breach of Privacy will be weighing in the minds of those who will work on the drafts.

One of the first counters to be raised therefore is “Whether these principles need to be expanded? or Modified?”

It is in this context that we raise the first supplementary principle to be added to the list.

“The proposed Data protection Act should be amenable for compliance by all stakeholders with pleasure and appreciation of the purpose. It should not attempt to enforce the law compliance by pain… except to the inevitable minimum required pain that accompanies all changes.”

The second principle which follows the first is that the proposed law should confine itself to the limitations that is inherent in such a legislation. The law is proposed as “Data Protection Act of India” but is it the right defining of the proposed law? or should it be considered differently? is a question to ponder.

When the honourable 9 member bench of the Supreme Court (Puttaswamy Judgement) declared in a hurry that “Privacy is a Fundamental Right under the Constitution of India”, there was no time to deliberate and come to a conclusion on “What is Privacy”. The order did not specify the definition but said Privacy is a fundamental right. So the task before the Data Protection Act legislators include defining what they propose to protect.

A question naturally arises therefore that if the 9 eminent jurists could not define the enigmatic concept of “Privacy”, should the Data Protection Act of India attempt to do it?

Data protection legislation may not be the right law to define Privacy. It should be through a different law under the overall domain of  “Democratic Rights of an Indian Citizen under our constitution”.

On the other hand the Data Protection law can effectively define the “Security to be accorded to Data” of a particular type. “A Data Protection Act” should confine itself to protection of “Data” which may be personal data, sensitive personal data, or even corporate data. Calling an Act as “Data Protection Act” and confining it only to being an “Individual Information Privacy Protection Act” is not warranted.

However, India already has a law called “Information Technology Act” which has several provisions that fall in the category of “Data Protection”. It also has provisions that are meant to protect “Information Privacy” because of Sections 72A and 43A. Sections 43 and 66 along with several other sections such as Section 67C, Section 79, etc define responsibilities of individual information privacy protection. Sections like 69, 69A and 69B also provide the “Reasonable Exemptions”.

Now whatever the new Data Protection Act proposes will be in partial modification of ITA 2000/8 and will introduce a conflict with ITA 2000/8 and perhaps also on the UIDAI act.

The new Data Protection law should therefore decide if it steers clear of the existing ITA 2000/8 or trample upon its provisions and replace them with a new set of the same provisions under a different legal provision.

We should not forget that there is a “Health Care Data Privacy Act” which is also on the drawing board and has already been partially rolled out in the form of EHR guidelines (though the industry has largely ignored it).

One of the other principles that the proposed law should declare for itself is therefore the following:

The Proposed Data Protection Act shall work in harmony with the current established laws in the country such as Information Technology Act 2000Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act,

The Key principles should therefore be increased from 7 to 9.

The main purpose of the suggestion is that we need a legislation that the stakeholders will absorb as a necessary legislation that is good for our society and hence all of us have a duty to comply with it.

Unlike the GDPR which tries to impose its will through  obnoxious penal provisions, Indian Data Protection Act or Information Privacy Protection Act, or Individual/Personal Information Privacy Protection Act, as it may be called should not bank upon its ability to control the market with its penal provisions. By stating that the penalty can be 4% of global turnover or 20 million Euros, GDPR is showing its muscle. India can counter this by saying that the penalty may be 5% of global turnover and INR 2 billion and make it applicable to any entity in the world. With such a provision we can also make the international community raise eyebrows and recognize our existence.

But is this the way law should be imposed? by threatening to wipe out a company in case of non compliance? and leave it to the mercy of the adjudicator to determine the final penalty and if possible use his discretion as a leverage to ask for favours from the accused?

Penalty should be a deterrent but it should not be so huge that the accused either declares bankruptcy immediately or thinks of bribing his way out. It is in this context that we say law should promote compliance not with pain but with pleasure.

Data Controller is also a stake holder

In the data protection law, the drafting people should also decide who is the stake holder/ or stake holders?. Is the stake holder solely the individual and others like the Data Controller or Data Processor only targets for imposing a penalty if they donot comply? ..when what they need to comply itself is unclear?

We must accept that a Company registered in India is as much an entity that needs Government protection as the individual who is a citizen of India. Hence the law of privacy cannot go over board and look at punishing the Data Controller severely as the EU law tries to do. Of course we donot trust the Companies as also the Government when it comes to Privacy protection and hence the need for the law. Law some times tries to provide protection to the Government separately (eg UIDAI) but imposes hefty fines on the private sector for the same offence. This may not be fair.

What follows therefore is that whatever law which is now being proposed, it should be equally applicable to a Company or the Government or an individual.

Secondly, if Individual’s data needs protection, corporate’s data also needs protection. If one is called “Privacy”, the other may be called “Data Protection”.

Hence if we call this new law as “Personal Information Privacy Protection Act”, then it can confine itself to protecting individuals against invasion of privacy that may arise because such information is not protected by a corporate or Government.

If we call this a “Data Protection Act”, then it should extend to Corporate data as well. Since ITA 2000/8 is already covering this aspect, there is no need to cover security of corporate data through this Act. On the same logic, if this law has to be a comprehensive law on Personal Data Protection, then Section 43A and 72A needs to be removed from ITA 2000/8.

If Section 43A and 72A are to be retained and the new law has to extend to privacy protection, then the law should clearly explain that the new provision is in addition to the earlier provisions in ITA 2000/8 and not in derogation of the earlier provisions present in ITA 2000/8.

If this precaution is not taken into account, we will end up with the argument which was presented by an advocate in an adjudication proceeding in Karnataka and accepted by the then adjudicator that “Introduction of Section 43A applicable for body corporate in ITA 2008 automatically changes the meaning of Section 43 and confines its jurisdiction to individuals only”. Though the undersigned did not subscribe to this view at that time and does not even now, if law is not clear, it enables such manipulation by clever advocates to the detriment of the society.

I therefore urge the SKC to declare that

what they are proposing is not in derogation of any of the existing laws and in particular the provisions contained in ITA 2000/8 on data protection in general and personal data protection in particular.

Jurisdictional Umbrella

It is more or less imperative that the law will define that it is applicable to the processing of data of an individual citizen of India by any person including a Company incorporated in India or otherwise or by Government in India or otherwise.

However, this will naturally lead to a conflict in implementation when the law is breached by a foreign company or a Government. Similarly a foreign Company or a Government may also try to impose its own law (eg GDPR) on an Indian company and claim penalties which may be significant and also involve foreign exchange outflow.

The Proposed law provides an opportunity to ensure that this conflict between different laws applicable to a single company in India is resolved without the company (registered in India and therefore expecting the Indian Government to protect it’s legitimate interests) having to face several international regulatory organizations at a given time.

Typically an organization handling data processing may have personal data from persons of different nationality. Each   now trying to impose its own laws and also extend extra territorial jurisdiction just like what GDPR has done in respect of information that belongs to its citizens. It has therefore become necessary for companies (Data Controllers or Data Processors) to tag every piece of personal information with the citizenship of the individual and try to apply appropriate laws. In one case it may involve “Right to Forget” and in another case there may be an “Obligation to retain”. In such cases, the Companies will be unable to comply with conviction if they donot have a data classification system that tags the information to the country of citizenship. (Hopefully there will be no dual citizenship problem).

This data protection law should recognize this problem of the business community and try to provide a solution.

The solution we suggest is two fold.

  1. Every consent should incorporate a specific clause which states that “This personal data shall be protected as per provisions of personal data protection applicable to ….. country. 
  2. The adjudication and imposition of penalties if any shall be determined as per the personal data protection regulations applicable to India and the Indian Data Protection Authority shall have the final authority in sanctioning any penalty in respect of any individual who is a citizen of India, any corporate or other organization registered and subject to Indian laws.

The jurisdiction clause is proposed as a mandatory part of the consent which itself should be mandatory.

This provision also means that if any EU entity imposes a penalty on an Indian Company, the Indian Data Protection Authority shall intervene to accept or reject the penalty claims.

In order to make the provisions of the new law fair, the law can offer reciprocal arrangements of similar nature to foreign jurisdictions and state

“Where penalties are imposed under the Personal Data Protection Act of India on a person who is either not a citizen of India or is a company registered outside India, then the Indian Data Protection Authority shall provide an opportunity to the Data Protection authority (if any) of the country to which the said company/individual belongs to implead on behalf of the said entity.”

Since some of these suggestions could interfere with international obligations, these may need to be properly drafted. The suggested intent is that no Indian Company will be directly made liable to any foreign authority whether by a contractual agreement or otherwise without a sanction of the Indian authorities. If this umbrella of protection is not created, GDPR will be an instrument that will create colonies in India and allow European companies control Indian Corporate entities.

Naavi

(Discussions will continue)